IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HERBERT ANDERSON,

Plaintiff,

vs. Civil Action 2:12-CV-642 

 Judge Marbley

Magistrate Judge King

JULIE M. KAGEL,

Defendant.

REPORT AND RECOMMENDATION

 Plaintiff, state prisoner, brings this civil action asking “to

appeal” to this Court from an order issued by the Ohio Supreme Court. 

This matter is now before the Court on its own motion to determine the

Court’s jurisdiction and for the initial screen required by 28 U.S.C. §§

1915(e)(2), 1915A(b).1 For the reasons that follow, the Court concludes

that it lacks jurisdiction to consider the claims asserted in the action

and that the action fails to state a claim upon which relief can be

granted. The Court therefore recommends that the action be dismissed.

The Court must first consider the nature of this action. 

First, plaintiff refers to the action as having been filed under 28

U.S.C. §1291. Application for Certificate of Appealability Pursuant to

28 USC Section 1291, Doc. No. 1-1, p.1. Section 1291 confers on federal

courts of appeals the jurisdiction to review the “final decisions of the

district courts of the United States . . .” (emphasis added). That

statute does not apply to this action because plaintiff seeks to appeal

1

Sections 1915(e)(2) and 1915A(b) require that the Court, acting on its

own motion, dismiss an action such as this if the action fails to state a

claim upon which relief can be granted. 

Case: 2:12-cv-00642-ALM-NMK Doc #: 6 Filed: 07/20/12 Page: 1 of 5 PAGEID #: <pageID>
to this district court a decision of the Ohio Supreme Court. See Notice

of Appeal, Doc. No. 1-3. Second, plaintiff invokes Rule 22(b) of the

Federal Rules of Appellate Procedure, which requires the issuance of a

certificate of appealability before an appeal can be taken in a habeas

corpus action. However, this is not an action for a writ of habeas

corpus because plaintiff does not challenge his confinement. Finally,

plaintiff invokes “42 U.S.C. § 1983" and the Fourteenth Amendment to the

United States Constitution. Application for Certificate of Appealability

Pursuant to 28 USC Section 1291, Doc. No. 1-1, ¶¶ 9, 11-12. He

specifically alleges that, in sua sponte dismissing plaintiff’s action

in the Ohio Supreme Court, that court denied him his rights to due

process and the privileges and immunities guaranteed by the federal

Constitution. Id. ¶ 19. The Court concludes that, in light of

plaintiff’s claim in this regard, this is a civil rights action under 42

U.S.C. § 1983. Having so concluded, however, the Court also concludes

that it lacks jurisdiction to entertain plaintiff’s claims and that the

action fails to present a claim upon which relief can be granted by this

Court. 

Based on the Court’s review of the documents submitted by

plaintiff, it appears that plaintiff filed a mandamus action in the

Marion County Court of Common Pleas seeking to compel officials at the

Marion Correctional Institution to follow certain procedures in

connection with disciplinary proceedings against plaintiff. That

mandamus action was dismissed by a Common Pleas Court Judge and plaintiff

thereafter filed a mandamus action in the Ohio Court of Appeals for the

Third Appellate District. That action was was also denied. Plaintiff

alleges that the “Clerk of Court, Marion County, Clerk, Julie M. Kagel,”

2

Case: 2:12-cv-00642-ALM-NMK Doc #: 6 Filed: 07/20/12 Page: 2 of 5 PAGEID #: <pageID>
the named defendant in this action, denied his request for copies of his

mandamus petition(s) in violation of Ohio’s Public Records Act, O.R.C.

§ 149.43(A).2 Plaintiff thereafter filed a petition for a writ of “habeas

corpus ad testificandum” in the Ohio Supreme Court, see Docket, State ex

rel. Herbert Anderson v. Julie M. Kagel, Case No. GEN-2012-0752 (Ohio

Supreme Court), Doc. No. 1-4, pp 13-14, “[p]ursuant to §2241(C)(5),”

asking that the Ohio Supreme Court bring him before “the court for a[n]

Evidentiary Hearing.” Doc. No. 1-4, pp. 40-41. Plaintiff also filed a

motion seeking injunctive and monetary relief against defendant Kagel in

connection with the claimed violation of Ohio’s Public Records Act.

“Motion for Sanction for Violations of Chapter 149, Ohio Revise Code,”

Doc. No. 1-4, pp. 15-21 [sic]. The Ohio Supreme Court dismissed the

action:

This cause originated in this court on the

filing of a complaint for a writ of habeas corpus.

Upon consideration thereof, it is ordered by

the court, sua sponte, that this cause is

dismissed.

It is further ordered that the petitioner’s

motion for sanctions for violations of Chapter 149,

Ohio Revised Code is denied.

Entry, Doc. No. 1-4, p. 12. 

In the action presently before this Court, plaintiff contends

that the Ohio Supreme Court “should not have rendered a judgment, sua

sponte, based on its resolution [that] did not provide sufficient notice

of deficiencies in the complaint, an opportunity to amend or to dispute

whether dismissal is appropriate.” Appeal Brief, Doc. No. 1-4, p. 2. 

Plaintiff asks this Court to review the decision of the Ohio Supreme

2

It is not clear to this Court when the alleged denial of plaintiff’s

request for copies occurred.

3

Case: 2:12-cv-00642-ALM-NMK Doc #: 6 Filed: 07/20/12 Page: 3 of 5 PAGEID #: <pageID>
Court and “remand[] [the action] to the Ohio Supreme Court with

instruction consistent with pubic record act of ORC Title 149.43

sanctions [sic].” Appeal Brief, Doc. No. 1-4, pp. 2-10. 

This Court lacks the jurisdiction to entertain plaintiff’s

claims or to grant the relief that he seeks. The “appellate jurisdiction

to reverse or modify a state-court judgment is lodged . . . exclusively

in [the United States Supreme] Court.” Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280, 283 (2005), citing 28 U.S.C. § 1257 (“Final

judgments . . . rendered by the highest court of a State . . . may be

reviewed by the Supreme Court . . .”). Under the Rooker-Feldman

doctrine, federal district courts lack jurisdiction to “review and

reverse unfavorable state-court judgments.” Id., citing Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923); Dist. Of Columbia Ct. of App.

v. Feldman, 460 U.S. 462 (1983). “If the source of the injury is the

state court decision, then the Rooker-Feldman doctrine would prevent the

district court from asserting jurisdiction.” Raymond v. Moyer, 501 F.3d

548, 551 (6th Cir. 2007)(holding that lower federal courts were barred

from hearing civil rights case challenging decision of the Ohio Supreme

Court). 

Because this Court lacks jurisdiction to review the decision

of the Ohio Supreme Court, and because plaintiff has failed to state a

claim upon which relief can be granted, it is RECOMMENDED that the action

be dismissed.

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file and

serve on all parties objections to the Report and Recommendation,

4

Case: 2:12-cv-00642-ALM-NMK Doc #: 6 Filed: 07/20/12 Page: 4 of 5 PAGEID #: <pageID>
specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be

filed within fourteen (14) days after being served with a copy thereof. 

F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to de

novo review by the District Judge and of the right to appeal the decision

of the District Court adopting the Report and Recommendation. See Thomas

v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers,

Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981).

 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

DATE: July 20, 2012

5

Case: 2:12-cv-00642-ALM-NMK Doc #: 6 Filed: 07/20/12 Page: 5 of 5 PAGEID #: <pageID>